Understanding RFRA: Is Religious Freedom the New Bigotry?
By Nicholas Miller –
Is supporting religious freedom an act of bigotry? This question is seriously being asked in the wake of the recent media eruptions surrounding the Religious Freedom Restoration Act (RFRA) bills passed in Indiana and Arkansas. The firestorm surrounding these bills has brought the tension between religious freedom and gay rights to a new level of public scrutiny and focus.
The discussion about the balance between religious liberty and sexual freedom is not new. It has been happening for about two decades now. But there has been a recent and significant change in its tenor and tone. The underlying assumption of the discussion has become that if protection of religious freedom has any chance of even remotely impacting gay rights, it is indefensible bigotry that must be boycotted, shamed, vilified, and hounded beyond the bounds of polite, commercial, and even civil society.
The problem with this new assumption is that it upends two centuries of how a system of rights works under our constitution and law. Previously, the classic liberal view envisioned a sort of multi-peaked landscape of rights, where rights to speech, assembly, privacy, religion, and the rest were balanced with each other and with societal concerns in a careful and judicious manner.
But in the last decade, this mountainous landscape, which harbored and protected a wide array of religions, ideologies, and outlooks, has been flattened into a featureless plain, scoured and ruled by the powerful, inescapable winds of a new secular, sexual, egalitarian ideology. Anything that has the temerity to stand in its way must be pulled downâ€"or so the media, celebrities, and business elites have declared.
This change in approach to rights is underscored by the reaction to the recent state RFRAs in Indiana and Arkansas. Indiana's was initially signed into law by Governor Pence. But under a barrage of media, celebrity, and business criticism and boycotting, Pence ordered the Indiana legislature to change it, which they have done. The governor of Arkansas preempted such criticism by asking for changes before he signed it. Yet these laws were essentially identical in substance to RFRA laws that have existed in about 20 other states for more than a decade, and to a federal RFRA that has existed for more than 20 years.
The Indiana and Arkansas Laws: Are They Really That Different?
Now, some claim that these RFRA bills contain important differences from the earlier RFRAs. It is said that the new RFRAs specifically include businesses and for-profit enterprises in their protections, and that they also can be applied against private parties and not just governments. But this is to overlook the fact that both of these elements were part of how RFRAs were understood to operate, even if they did not contain this language. The “sinâ€ť of the more recent RFRAs was making explicit what was already implicit in the previous RFRAs, as acknowledged by the U.S. Supreme Court itself.
This is something I know about personally, as in the late 1990s, I was involved in the framing of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), as well as in coalitions to support the passage of state RFRAs. At the center of our efforts was an attempt to understand and apply the “compelling interestâ€ť standard, the heart of all RFRAs. There was a clear sense among the drafters and promoters of these laws that they were to protect business owners with religious convictions.
In the RLUIPA and state RFRA coalitions of the time, there was a great deal of attention paid to the “Mrs. Smithâ€ť case out of California. This case involved an elderly religious lady who refused to rent apartments to a couple living out of wedlock. Should her concerns be protected by RFRA? The California Supreme Court had denied her right to make rental selections based on her religion, as renting apartments was not an activity “centralâ€ť to her system of religious belief.
The religious freedom community opposed this centrality argument, and RLUIPA and state RFRAs almost all have language about religious behavior being protected even if it is not “centralâ€ť to one's system of belief. For our purposes, the important point is that the drafters of these acts viewed them very much as applying to both private individuals and businesses. This view was subsequently vindicated by the Supreme Court's decision in Hobby Lobby, which made clear that the law applied not only to small businesses but also to large family-run or closely held corporations.
So in stating that businesses were covered by RFRA, the Indiana legislature was merely making explicit what had been assumed about earlier RFRAs, and had indeed been confirmed by the Supreme Court. The issue of application of RFRA to private parties is perhaps only slightly more contentious. Again, this was not mentioned in the original RFRA, as it was assumed that RFRA would be a shield primarily against laws, and the concern about parties was secondary. Whether you were sued by the state or by a private party, you could challenge the validity of that law under RFRA.
While the Hobby Lobby case was brought by private parties against the government, it could have been brought as a defense to lawsuits by women employees seeking to obtain abortifacient coverage. There is some difference on this question between some of the federal circuits, and it has not been ruled on by the Supreme Court. But it seems again the obvious implication of RFRA logic, and indeed has been accepted and promoted by the Obama Justice Department itself.
Rights in the Balance
Now, the important thing about RFRA is that it did not envision religious freedom prevailing at the expense of all other rights. Rather, it proposed a continuation of our classical constitutional system of rights where various rights were weighed and measured and the result differed depending on the magnitude of interference with various rights and interests.
To give you a sense of the way this was thought of, let me quote from a booklet I was the main author of entitled “Questions and Answers About State Religious Freedom Restoration Acts.â€ť This was published in the late 1990s and was circulated widely in the civil rights community in Washington, D.C., as well as to legislatures where state RFRAs were being considered. It is, in a sense, legislative history of the early RFRAs, and is quite illuminating on this point.
After acknowledging that the Supreme Court had already ruled that eradicating racial discrimination was generally a compelling interest, the booklet addressed other interests, including gender and sexual orientation:
These interests [gender, sexual orientation, marital status] have been found by some courts to override religiously based housing and employment decisions. In other cases the free-exercise right has prevailed, protecting the freedom of choice of the landlord or employer with religious scruples. The lesson is that each instance of alleged discrimination will likely require its own weighing of the facts and circumstances. A devout widow who rents the apartment over her garage or who is a live-in landlord at a four-unit complex may be protected in her conviction that she does not want to facilitate and live with what she views as immoral conduct. However, the claim of an absentee religious landlord who owns a forty-unit facility will come out differently, with the balance likely tipping in favor of the associational rights of the renters.
The careful balancing of rights envisioned by the framers and promoters of RFRA was based on a history of cases worked out by federal courts for judging among competing rights claims. The truly alarming thing for all rights claims is that the latest media “discussions,â€ť if they can be called that, are demanding a very different approach to rights. Now, it seems we have been given a hierarchical set of rights, with historic rights to freedom of religion, speech, and association set down beneath the all-important and central rights of a secular sexual ideology.
To illustrate this point, consider these hypotheticals: should a gay baker be legally required to bake a cake for the Westboro Baptist Church that says on it “God Hates Gays?â€ť Or should a black baker be forced to bake a cake that says “We Love the KKK?â€ť Nobody I know on the liberal or conservative side would say that they should. Why do we have a different outcome when it comes to the Christian and gay marriage cases?
I would suggest that it is because underneath the new secular sexual ideology, gays are now a politically correct, popular minority, and Christian fundamentalists and KKK groups are not. But these societal facts do not change the basic legal principle involved, that the freedom of religious and ideological expression, as well as freedom of association, should cause the gay baker, the black baker,and the Christian baker to be protected.
But in our new regime, it is equality that is paramount, and that is to be an equality based on a view of humanity, sexuality, and society that is modern, secular, and hostile to almost all traditional religious outlooks. The logic of rejecting a balancing of rightsâ€"a balance which state RFRAs aim to protectâ€"has fearful implications.
“Equal Rightsâ€ť at Any Cost?
Questions are now being seriously raised in mainstream media: Will religious colleges and schools be able to teach and implement their beliefs regarding sexual behavior and domestic relationships? Can Christians, Jews, or Muslims who hold to traditional sexual ethics serve as public employees? Can they hold positions of responsibility at important private institutions? Should churches that hold these traditional beliefs lose their tax-exempt status? Should ministers of these churches be allowed to marry anyone? Should private religious schools even be allowed at all?
Some of these questions seem extreme. But ten years ago, even five, it would have seemed extreme to say that nearly two-thirds of the states would have gay marriage and the Supreme Court would be on the verge of making it a federal right. In less than a decade, the unthinkable has become the inevitableâ€"and even the morally necessary, according to our social elites.
Those crying discrimination in Indiana and Arkansas need to look closely at the real issues at stake here. We need to consider the new regime of rights we are embracing as a society, and stop and ask if the cost is not too greatâ€"that of insisting on erasing, publicly at least, many of the core values and teachings of the world's great historic religions. The result would be the ghettoizing of traditional religious peoples into secluded communities, with minimal contact with the outside world.
We see this pattern developing in Europe already, and it has not made for a peaceful or positive coexistence. Rather, it has tended towards the breeding of radicalization, extremism, and violence. Indeed, the European experience is part of what provoked the American experiment with religious freedom: a robust separation of church and state, but a charitable, benevolent, and protective attitude towards the free exercise of religion by the great diversity of individuals that came to our shores.
Milton Friedman once said: “A society that puts equality before freedom will get neither. A society that puts freedom before equality will get a high degree of both.â€ť Perhaps it is not necessary to put freedom “beforeâ€ť equality, but history and our founding values suggest a mutual balancing of the two. To renege on our founding promise of religious freedom, and to try to fight “religious bigotryâ€ť with the new regime of a secular egalitarianism, will lead to a new and more intensive kind of bigotryâ€"one towards religion and religious people. That is the true new bigotry.
 “Reply in Support of Motion to Dismiss at 3-4,â€ť Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012), as quoted and discussed at http://joshblackman.com/blog/2015/03/26/comparing-the-federal-rfra-and-the-indiana-rfra/ (viewed on 4/2/2015).
 “Questions and Answers About State Religious Freedom Restoration Acts, 2nd ed.,â€ť (Washington, D.C.: Sidley, Austin, Brown, and Wood, 2000), 10.
 http://douthat.blogs.nytimes.com/2015/03/30/questions-for-indianas-critics/?smid=fb-share&_r=0Â (viewed on 4/2/2015).
 http://www.goodreads.com/author/quotes/5001.Milton_FriedmanÂ (viewed on 4/2/2015).